Opinion | Biden parole for immigrant spouses is lawful and laudable

Theodore B. Olson, an attorney with Gibson, Dunn & Crutcher, was solicitor general of the United States under President George W. Bush.

President Biden’s recent decision to allow law-abiding noncitizen spouses of U.S. citizens who have long-standing ties to the United States to apply for immigration parole is a laudable step — and a lawful one. It deserves our full support.

Parole is a discretionary power exercised by immigration officers to permit noncitizens toremain in the United States temporarily, under government supervision, while they pursue more permanent immigration status. The new policy would make that relief available on a case-by-case basis to noncitizens who, as of June 17, are legally married to a U.S. citizen, have been present in the United States for at least 10 years and pass a criminal-background check.

Advertisement

The executive branch has been exercising parole authority for more than a century, and that parole authority has been codified in our laws since the enactment of the Immigration and Nationality Act in 1952. By statute, parole is available to anyone “applying for admission to the United States.” Initially, this meant only those arriving in the United States at a port of entry (for example, a border crossing or airport). In 1996, however, Congress overhauled our immigration laws so that anyone “present in the United States who has not been admitted” formally is considered an “applicant for admission” and therefore potentially eligible for parole. When individuals apply for parole from inside the United States, that practice is known as “parole in place.”

For decades, administrations of both parties — including every president from Bill Clinton to Joe Biden — have routinely exercised their statutory discretion to make parole available to categories of eligible noncitizens. Under President Barack Obama, for example, the Department of Homeland Security issued a widely lauded policy that made noncitizen immediate family members of U.S. service members and veterans eligible for parole in place. When reports emerged in 2019 that the policy might be rescinded, a bipartisan group of legislators urged the executive branch to reconsider. Then, in 2020, Congress passed legislation expressly reaffirming the executive branch’s parole-in-place authority and supporting parole for military families.

Biden’s policy is closely modeled on that same parole-in-place policy and is carefully designed to ensure that it complies with the Immigration and Nationality Act’s requirements. For example, the statute permits immigration officers to grant parole only “temporarily” and “on a case-by-case basis.” The policy would therefore extend parole for only one year at a time. It also does not guarantee parole; it merely allows eligible people to submit an application, which the Department of Homeland Security would then consider on an individual basis.

Advertisement

Granting relief in these circumstances also serves Congress’s goals in authorizing parole. Parole may be granted only “for urgent humanitarian reasons or significant public benefit.” The policy easily satisfies both grounds. The roughly half-million individuals the White House estimates would be eligible for protection have resided in the United States for an average of 23 years, and most have U.S. citizen children. These individuals are mainstays of our local communities — they are our friends, colleagues, congregants and caretakers — yet they live in constant fear of removal and separation from their families. Parole would alleviate the immediate stress and anxiety caused by the threat of removal. It would allow them to apply for authorization to work, providing more stability for them, their families and the businesses that employ them, and adding to the $13.5 billion they already contribute to the U.S. economy. The policy would also promote safe, legal and orderly migration, and it would improve vetting for national security and public safety by moving undocumented individuals into established immigration pathways.

Critics have denounced the policy as an illegal amnesty program. They are mistaken. The policy grants temporary relief on a case-by-case basis. To be sure, receiving parole might make it easier for some recipients to adjust their immigration status if they otherwise meet the requirements for lawful permanent residence. But that is by Congress’s design. Congress has determined that anyone granted parole after careful vetting should be allowed to apply for lawful permanent resident status from inside the United States, rather than having to leave the country and separate from U.S. citizen family members for years while waiting to apply for reentry. Helping valuable members of our communities secure the permanent right to live together with their spouses and children is an added benefit of the policy.

I have been engaged with our nation’s immigration policy for more than 40 years — as head of the Office of Legal Counsel under President Ronald Reagan, as solicitor general under President George W. Bush and as a private attorney who successfully defended the Deferred Action for Childhood Arrivals policy against attempts to rescind it. These experiences have reinforced my belief that our nation’s immigration policies must respect the rule of law while treating immigrants humanely and accounting for their contributions to their families, their communities and our nation. Biden’s new parole policy will advance both these objectives.

It is a laudable and lawful policy, and I am pleased to support it.

ncG1vNJzZmivp6x7uK3SoaCnn6Sku7G70q1lnKedZLyxtc2ipqerX2d9c4COaW5oaGVkr6qwxKdkqZmipLmmecimpKKfopa7tb%2BMrKeoraOawG64wLCdrqRf